Time of Application Rule is Now The Law

As we noted back on March 1, 2011, the judicially-created “time of decision” rule’s expiration date was coming. 

Effective today, developers may file applications and, with limited exception, get the benefit of the zoning ordinances in effect at the time of filing pursuant to the “time of application” amendment to the Municipal Land Use Law signed on May 5, 2010 by Governor Chris Christie.

For a look at the full text of the law, see: http://njzoningwatch.com/2011/03/01/time-of-application-law-becomes-effective-in-two-months/

Bill Defining “Inherently Beneficial Use” Now Law

On November 20, 2009, Governor Corzine signed S-1303/A-3062 into law. The new law amends the definitions section of the Municipal Land Use Law (“MLUL”) to define “inherently beneficial uses” and “wind, solar, and photovoltaic energy facilities or structures.”  See N.J.S.A. 40:55D-4.   The new law defines an inherently beneficial use as one that is “universally considered of value to the community” in that by its very nature, it “fundamentally serves the public good and promotes the general welfare.” The definition includes a non-exhaustive list of examples of such uses, such as hospitals, schools, child care centers, groups homes, and wind, solar or photovoltaic energy facilities or structures.   “Wind, solar, or photovoltaic energy or facility or structure” is defined as “a facility or structure whose purpose is to supply electric energy generated from wind, solar or photovoltaic technologies, regardless of whether it is a principal use, part of a principal use, or accessory use or structure.”

The law was passed over the objections of the New Jersey State League of Municipalities (the “League”) as well as the objections of several municipalities who opposed the bill through municipal resolutions. 

According to the League:

Prior to this bill, the courts treated inherently beneficial uses on a case-by-case basis. Although a use such as a brain trauma center would undoubtedly be considered inherently beneficial if the center was the only one of its kind in the area, the courts made clear that in a community saturated with such facilities, the use might no longer qualify as inherently beneficial. The MLUL amendment effectuated through this bill, however, removes that distinction, making the listed uses inherently beneficial regardless of how many may already exist within the community. In addition, by adding wind, solar and photovoltaic facilities to the list, the new law anticipates further legal developments, as the status of such uses has yet to be addressed by the courts.  

It should also be noted that by using the term “includes, but is not limited to” in the definition of inherently beneficial use, the bill makes clear that other uses could also qualify as inherently beneficial uses, even though not specifically enumerated in the definition (e.g. houses of worship and affordable housing).

Conversely, for land owners who believe they have been stymied by municipal action or inaction designed to thwart reasonable development of their property, this new definition of “inherently beneficial use” may provide the legal support needed to construct facilities such as solar farms or group homes on land which a municipality has “defensively” zoned. 

For the full text of the new law, click here.

For an article on the Jumilla, Spain solar farm (pictured above), the largest solar farm in the world, which encompasses approximately 247 acres and is expected to produce enough electricity to power 20,000 homes, click here.

League of Municipalities Opposes Bill To Designate Wind, Solar Power as “Inherently Beneficial Use”

The New Jersey State League of Municipalities (the “League”) is opposing a bill which is on the Governor’s desk for consideration after passing the Legislature over the summer.  The proposed new law codifies the definition of “inherently beneficial use” under the Municipal Land Use Law and expands the traditional categories set forth in case law to specifically cover wind, solar and photovoltaic technology.  The League’s position is that such uses should not be granted “favored” status under the MLUL and the League has circulated to elected officials a proposed form of resolution for adoption opposing the change.

The full text of the “Dear Mayor” letter from the League states:

The League opposes S-1303/A-3062, which defines “inherently beneficial use” and includes facilities that supply electrical energy produced from wind, solar or photovoltaic technologies. If a use is deemed to be “inherently beneficial” it presumptively satisfied the criteria for a use variance under subsection d of section 57 of the MLUL, (i.e., a nonconforming use.) Thus, these uses would be considered inherently beneficial, even in residential zones.

We understand the intent of the bill, which is to promote alternate forms of energy.  But, if indeed a project is beneficial to the community, the applicant has the option to go through the normal regulatory and democratic process.  No such change in the statute is necessary.

While this is promoted as an energy bill, we view it as a land use bill and a problematic land bill. The bill effectively declares these alternate energy sources as “inherently beneficial uses” without regard to the particular zone in which the property is located, undermining the very purpose of zoning (that is to separate residential, commercial and industrial uses) and sound planning strategies.      

To view the League’s model resolution in opposition to S-1303/A-3062, click here.

Zoning Change Can Be Granted for Affordable Housing As “Inherently Beneficial Use” Even If COAH Obligation Met

In a ruling that will send even the most COAH-sensitive municipalities running to their attorneys and planners for an explanation, the Appellate Division ruled on Monday, August 24, that existing zoning laws can be modified to allow affordable housing development even where the municipality has satisfied its COAH obligations. 

More specificially, the Appellate Division in Homes of Hope, Inc. v. Easthampton Township Land Use Planning Board, A-551-07T2 (App. Div. Aug. 24, 2009) (approved for publication) held that “a municipality’s compliance with the [Fair Housing Act] by meeting its fair share obligation does not impact affordable housing’s inherently beneficial use status for purposes of obtaining a use variance.  Affordable housing continues to foster the general welfare and constitutes a special reason to support a use variance.”   

According to an article posted at www.nj.com:

Zoning laws in New Jersey towns can be altered to accommodate affordable housing even after the municipality has met its quota, a state appeals court ruled today.

The case before the panel involved a non profit organization, called Homes of Hope, that was looking to build eight multi-family dwellings in an area of Eastampton only zoned for single-family homes. The town’s land use board denied their request for a variance to build the dwellings, citing that building the units was unnecessary because 100 units of affordable housing were already built and the proposed dwellings would exceed the number required by the state’s Fair Housing Act.

The three-judge panel however upheld a trial court decision allowing the eight units, ruling that municipalities cannot reject such development solely based on a town meeting its affordable housing obligation.

Judge Michael Winkelstein wrote that just because the municipality has met requirements set forth by the Council on Affordable Housing, it does not mean they have reached a limit on affordable housing.

“The (Eastampton Land Use) Board claims that because the Township has met its fair share obligation, it no longer has a need for low or moderate income housing and, consequently, that type of housing is no longer inherently beneficial so as to qualify as a special reason to support a use variance. We reject that argument,” wrote Winkelstein.

The town is 11 miles north of Mount Laurel, where the state’s decades-long battle over affordable housing began. “It is beyond question that even if a municipality meets its Mount Laurel obligation, substandard housing will continue to exist,” wrote Winkelstein.

For a link to the article, click here.

For a link to the Appellate Division decision, click here.

For a discussion of the political ramifications of the decision on the 2009 New Jersey Governor and Assembly races at www.politickernj.com, click here.

For an NJ.com article discussing politician’s reactions to the decision, click here.

Bill Granting Wind, Solar and Photovoltaic Projects “Inherently Beneficial Use” Status Sent To Governor

A bill which defines the term “inherently beneficial uses” under the Municipal Land Use Law passed without much fanfare in the closing hours of the 2009 summer legislative session.  However, while the term “inherently beneficial use” was coined by the courts to identify development that deserved, from a public policy standpoint, a presumption that the development satisfies the positive criteria in connection with a “d” variance, the term was never defined by the legislature.

Provided the bill is signed by Governor Corzine, the definition of “inherently beneficial use” will now include wind, solar and photovoltaic facilities and structures, along with other recognized categories such as hospitals, schools, child care centers and group homes.  Thus, the proposed new law provides a substantial leg up to certain “green power” development projects while leaving developments featuring other alternative energies,  such as geothermal, cogeneration, hydropower and nuclear power, to continue to have to demonstrate the positive criteria for a “d” variance.

According to the Assembly floor statement to S1303:

This amendment would clarify that a “wind, solar or photovoltaic energy facility or structure” would be considered “inherently beneficial,” and therefore presumptively satisfy the positive criteria for the grant of a variance under subsection d. of N.J.S.A.40:55D-70, regardless of whether the facility or structure is a principal use, a part of the principal use, or an accessory use or structure.

The new definition that will appear at N.J.S.A. 40:55D-4 is:

“Inherently beneficial use” means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.

For a copy of the bill, click here.

Structure With Height Exactly 10% Greater Than Maximum Requires D(6) Variance

A trial court decision has clarified the circumstance in which a D variance for height is required, holding that where a principal structure is exactly 10 percent higher than the height limitation under local ordinance, the applicant has an enhanced burden of proof which requires five (5) affirmative votes with exclusive jurisdiction before the zoning board of adjustment.

In Shri Sai Voorhees, L.L.C. v. Township of Voorhees, (N.J. Law Div. – Decided January 9, 2009)(Approved for Publication April 21, 2009), the trial court ruled that an application to erect a principal structure exactly 10 percent higher than the zoned height limit requires a “D” variance. As a result, the applicant’s approvals before the planning board were vacated for lack of jurisdiction as the proper board to seek relief from was the zoning board of adjustment.

The full opinion is linked above.